Banerjee, J.:— A very short point calls for our decision in this appeal, viz., whether dismissal of an employee can be made with retrospective effect; if not, what should be the compensation payable to such an employee.
2. On the 1st October, 1943, the plaintiff appellant was appointed temporarily as a suboverseer under the District Board of 24-Parganas. He was appointed substantively in the post, with effect from the 21st March, 1945. His scale of pay on substantive appointment was Rs. 50-5-150/-. In May, 1947, the plaintiff appellant was transferred to Basirhat. His activities while posted at Basirhat have brought about the situation.
3. On the 17th June, 1947, Hriday Bhusan Chakravarty, President, Bhojerhat Union Board, addressed a note to the Secretary of the District Board complaining that the bill of costs for earth work done on Tardah Road had been excessively inflated. The appellant prepared the bill and the bill was payable to the contractor for the earth work, one A.K Roy Choudhury. There was an enquiry held in the matter, and on enquiry, the complaint made by the President of the Union Board was found to be substantially correct.
4. On the 1st September, 1947, Departmental proceedings were started against the present appellant and charges were drawn up against him by the Secretary of the District Board. The plaintiff appellant was asked to show cause against false measurements and drawing up of inflated bills, as complained against by the President of the Union Board.
5. On the same date the plaintiff was placed under suspension and the plaintiff appellant made over charge of his office on the 3rd September, 1947.
6. The plaintiff appellant participated in the departmental enquiry, as a result of which the plaintiff appellant was found guilty and was ordered to be dismissed.
7. The order of dismissal (exhibit 4) is dated the 1st November, 1947, and it shows that the plaintiff appellant was dismissed with effect from the 3rd September, 1947, viz. the date when he made over charge of his office on suspension.
8. Against the order of dismissal, characterised by the plaintiff as wrongful, the plaintiff filed a suit for damages, claiming Rs. 2100/-.
9. Both the Courts below dismissed the plaintiff's claim and hence this appeal by the plaintiff.
10. Mr. Das Gupta, appearing on behalf of the plaintiff appellant, urged that the order of dismissal, with retrospective effect, was, on the face of it, an illegal order and amounted to a wrongful dismissal of the plaintiff from office. In support of his contention, Mr. Das Gupta relied on a decision of Bose, J. reported in (1) 61 C.W.N 880 (Abdul Hamid v. District School Board, 24 Parganas).
11. Mr. Mitter appearing for the respondent did not contest the proposition of law, but made a grievance that the aforesaid plea was not taken in the plaint.
12. We have examined the plaint ourselves and we find that the dismissal with effect from the 3rd September, 1947, was pleaded in paragraph 10 of the plaint, and in paragraph 13 dismissal was characterised as wholly wrongful and illegal. That being so, we are of opinion that the plaintiff is not hit by the law of pleading and the order of dismissal with retrospective effect, was substantially pleaded as a wrongful order.
13. That being so, the plaintiff appellant has succeeded in making out a case of wrongful dismissal, and the only question, which remains for us to decide, is to what damages he is entitled.
14. There is no statutory rules, framed by the District Board, as to what should be the period of notice of discharge. Therefore, if the plaintiff was to be discharged, he would be entitled to reasonable notice. Since we hold that the dismissal of the plaintiff was wrongful, we are to act by the standard of compensation that would have been payable to the plaintiff appellant, if instead of being dismissed he would have been discharged on notice.
15. In a case, similar to the present one, reported in (2) A.I.R 1938 Allahabad 276 (Prabhulal Upadhyaya v. The District Board of Agra) it was held that in ordinary circumstances, a person of the plaintiff's position would be entitled to three months' notice terminaing his employment, because such period would be sufficient to enable the plaintiff to obtain other employment and earn his previous salary.
16. We respectfully agree with the view taken in (2) A.I.R 1938 Allahabad 276, and we hold that the compensation payable to the plaintiff would be equivalent to the monthly salary and allowances payable to him for a period of three months. We are told that such amount would come up to Rs. 330/-.
17. We, therefore, allow this appeal, set aside the judgments and decrees of the Courts below and decree the plaintiff's claim to the extent of Rs. 330/-(Rupees three hundred and thirty only).
18. In view of the circumstances of the case and the decree passed by us, we direct (that parties are to bear their own costs throughout.
Renupada Mukherjee, J.:— I agree.
S.K.B